Big Money, Low Politics and the High Court… An Exchange of Views, Part II

GUESTS: Floyd Abrams and Burt Neuborne
AIR DATE: 12/18/2010

I’m Richard Heffner, your host on The Open Mind.

And I’ll introduce this second part of our rather unique program series the same way I did the first … noting that today we’re going to do here what basically we haven’t done here for more or less the past half-century…since The Open Mind was only 4 or 5 years old.

We’re going to change what for so long now has been a rather sedate, one-on-one weekly broadcast conversation into instead a much more vigorous exchange of clearly contradictory points of view between two adversaries, though friends and both ardent free speech attorneys.

And I’ll just sort of egg them on.

Now, there are others along the same lines, of course…but what I stated last time as my guests’ first subject was the Supreme Court’s recent Citizens United versus Federal Elections Commission decision that seems, to me at least, clearly to have led to the infusion of so many more scores of millions of dollars into the mid-term Congressional elections just ended, and that promises to lead to money talking ever louder and louder in American politics in the years ahead.

I had, of course, discussed Citizens United before at this table … but one-by-one with each of today’s guests.

First — indeed, even before the Supreme Court of the United States decided the case — with Floyd Abrams, the brilliant constitutional attorney famed for his many successful defenses of Americans’ free rights … free speech rights under the First Amendment to the Constitution.

Thereafter, Floyd was one of those who actually prevailed in court in Citizens United.

Then, after the Supreme Court’s fateful 5 to 4 decision, I spoke with today’s other guest, another noted free speech attorney, Burt Neuborne, Professor of Civil Liberties and Legal Director of the Brennan Center at New York University Law School. Burt’s negative thinking about money not only talking but having a constitutional right to free speech clearly didn’t prevail in court in Citizens United.

I began the exchange between these two friends of mine by turning first to Floyd, here in mid-November 2010, and asking whether last week’s first national electoral experience that we Americans have shared since his Supreme Court victory really left him feeling more sanguine about America’s national political life…and the First Amendment.

Well, we went on from there, and I suggest now we pick up where we left off. Where did we leave off … Burt …

NEUBORNE: Well, I, I think we left off when Floyd made a very important point. And a .. which … a point with which I agree, primarily. That when you have an imbalance in speech, when you have a very loud voice and a very weak voice … the First Amendment gets very nervous when you silence the loud voice in order to make the weak voice stronger.

And I don’t disagree with that. But what I don’t do is take it as an absolute. Because there are certain institutions where it’s necessary to do it for the institution to function correctly.

For example … nobody would suggest in a courtroom that when you have a very rich lawyer with a large record and a very poor person with a very weak record that the rich guy speaks longer than the poor guy, just cause the rich guy wants to talk. Nobody would suggest when you have a, a debate in a legislature that, that one side gets to buy time and the other side doesn’t.

In my classroom, I would never think of saying that a rich student could speak more than a poor student because they … because we could market the time.

I want to suggest that elections are like that. Elections are an institution that assume that there’s going to be a flow of information to the voters that’s going to allow the voters to be able to make a, a decent informed idea about how to vote.

And that in order to make that institution work, it may be necessary to cap the, the ability of very powerful interests to drive out the voices of weak interests. Did it happen in this election? I don’t think so. I don’t think so. I think, I think each side had a chance to make its case and the American people made, made a judgment and the judgment was a judgment that I didn’t like, but it’s a judgment that you respect.

But are we risking it in the future? Absolutely. Absolutely. With the amount of money that corporations can pour into elections we are really risking a situation where one side is going to dominate the discourse. And I think that’s terrible for democracy.

HEFFNER: Floyd … you’ve won your case in court and as you say, there’s a certain panache about decisions once made. How do you feel about the point that Burt is making. Not necessarily in terms of First Amendment constitutional law, but it’s a point about our society.

ABRAMS: I guess I do look back to the election now just a few weeks ago as our first bit of life under … what … at least I think that the two of you think is a brand new regime. I think you’re overstating how much Citizens United changed the law. But, but that a new regime.

And just to follow up on something Burt said earlier … it’s important to say that there is no evidence at all from what we’ve just seen that someone, some side didn’t get a chance to get its views out. The public was well aware, understood very well, what the parties were saying, what the candidates were saying. And they made choices. And we’ve learned something else.

We’ve seen it before, but we’ve relearned it … which is that after a certain point money doesn’t seem to turn the tide at all.

Meg Whitman certainly learned that. And Linda McMahon, Connecticut learned that. And, and I, I suspect we’re going to see that again and again in the future.

So, I’m not as discouraged or fearful, I should say, as Burt about how things might work out in the future. Is it possible that one side might dwarf the ability of another to get voices out.

I remember when I was a kid … one of the things that the Democrats used to talk about … with some justification … in this country was … quote … “the one party press … unquote. That such an overwhelming amount of newspapers supported Republicans and newspapers were so much the way news and opinions got out, that the argument was it’s, it’s “just not fair”.

Now, no one even thought then of saying that because newspapers were owned by corporations maybe we ought to have a limit either of circulation or of pages or of anything which, which might be able to equal the playing field. I don’t think anyone would really say that now.

But, so far we’ve generally lived in a country and in our first post-Citizens United I would say, we have certainly lived in a country in which the, the sides have gotten their views out. The public understood and the public made a choice.

Now if, if what you were saying is “what about third parties? What about new entrants?” Isn’t the fact of four billion dollars in the last election going to be a deterrent? I think it will be a deterrent …

NEUBORNE: Yeah …

ABRAMS: … not, not especially because of Citizens United, but Citizens United is consistent with that. Sure, I mean why did we have these self funded candidates? Just to run an election in California or Connecticut, you need a lot of money. I mean you cannot get your message out at all, if you don’t take out a lot of ads and appear in a lot of places and do a lot of things which, without funding, cannot be done.

HEFFNER: So …

ABRAMS: Yeah, go on.

HEFFNER: No, I was just wondering, Floyd … in, in our first program together that led me to ask whether you gentlemen were more well disposed, perhaps, to the notion of public financing, just because of what you said there.

ABRAMS: I find public financing very attractive. I don’t think it’s very realistic these days anyway … in terms of Congress and the like. I think public funding is a very good idea so long as it doesn’t cut off the ability to spend your own money.

Well, here in New York City we have a system that I think works generally pretty well. It, it doesn’t come out even. I when you have a Mike Bloomberg, he spent over $80 million dollars in his first campaign. His opponent got $16 million dollars. But his opponent had the Democratic Party behind him, too. And, so I think there was … although the candidate would not agree … a sort of rough fairness to that. In any event, I, I think more public financing is a good idea. Burt?

NEUBORNE: Well, well so do I. I mean, again, it assumes we’ll ever have a Congress that will be willing to enact serious public financing. It you have a Congress that’s controlled by the people that gave the money to get them in there, they are highly unlikely to turn and bite the hand that’s feeding them.

But assuming we had a Congress that was open to do this, public funding is clearly, I think, the, the way out of this morass. The New York system that Floyd was describing is a system that works very well. It’s, it’s a … what it is, is it’s a leveraged match.

For every dollar you give, the City matches, up to $5.00 I think … sometimes even more. So that if you raise a relatively small amount of money from individuals, in small batches, the City will match that money in the way that will give you enough of a war chest, if you’re running for a local office, to be able to actually make a serious campaign. My hope is we see that go national. Every time it gets introduced into Congress, it’s, it’s dead on arrival. Dead on arrival because the lobbyists go crazy and they shoot it. And until the Supreme Court does something that forces anybody’s hand … ahmm … we’ll talk about things like that, but we’ll never see it.

And the Supreme Court is actually been hostile, hostile to campaign funding. In a case just after Citizens United … some states have something they call a trigger mechanism and that’s if both candidates take the public funding … everything works fine. They, they take the public funding, there’s a limit on how much they can spend and the, the campaign runs fairly well.

If only one candidate takes it, he takes a tremendous risk that he’s going to be limited on how much he can spend and his opponent is going to spend him out of the campaign.

And so some states have trigger mechanisms that if your opponent spends vastly more than you do, more public funds get given to the outspent candidate to try to create a kind of even playing field.

Supreme Court suggested that that’s unconstitutional. They suggested that that penalizes the rich guy for raising a lot of money because by raising a lot of money, he also gets money being sent to his opponent. And that kind of penalty, they say … violates the First Amendment.

I must say I, I was astonished to see that. I know it’s the law, but why it is a penalty to have to answer to somebody who has enough money to answer you … I just don’t understand. I …but … I mean … do you think that that’s right … that the penalty cases are right?

ABRAMS: I’ve been sort of not taking a position …

HEFFNER: (Laughter)

ABRAMS: … for a long time. (Laugh) Look it’s a … it’s a socially troubling result. As to whether the First Amendment requires it, as the First Amendment often requires troubling results … I, I’m not prepared to say yet. Have us back in two years and I’ll give you an answer.

HEFFNER: You know, it’s so interesting … you say as the First Amendment …

ABRAMS: Yeah …

HEFFNER: … does at times require us to make troubling decisions … is there anything that in your mind would trump that First Amendment?

ABRAMS: Well, in this area there’s really not very much for me that I can think of … but, but the point I was making, Dick, I mean consider other cases before the Court this term and last term.

You know a family … a religious family of … a quirky Kansas family goes and not only demonstrates, but libels dead American soldiers outside the places of their funeral … as a way of making the point that we are too soft on accepting the homosexuals in American life.

Now we don’t know how the Court will come out there. But I can tell you this and that is that Burt and the folks at the Brennan Center and most of my Liberal friends think that that’s a price the First Amendment requires us to pay.

And similarly, in another case, just last year … snuff films about the torture and killing of animals … the killing is illegal … is it illegal to distribute the films of the killing?

And the Supreme Court said that a Federal statute that did that was constitutionally overbroad and, and could not be deemed consistent with the First Amendment. In the face of a dissenting opinion of Justice Alito … it was an 8 to 1 vote … in which he said that this is material of, of … he called it a form of depraved entertainment of no social value at all.

HEFFNER: Using the good old words.

ABRAMS: I think every member of the majority would agree with that line and no one answered it. No one suggested it had any value … I think all of them accepted the notion it might well encourage this illegal act of killing animals, and nonetheless we sort of hold our breath and we live with it because we think, for a variety of reasons, that’s what the First Amendment requires.

And my point if only that, that we should not limit ourselves … when we talk about an issue like this to whether we think on the ground it will be beneficial or harmful to American society where the phrase that Burt uses a lot … American democracy.

I mean from my perspective it cannot be consistent with American democracy to make it a crime to bar a movie from being shown, but that aside it just seems to me that we should not limit the discussion … and we’re not limiting it here … but, but in American life we should not limit the discussion of Citizens United to the question of whether we think elections will be better or worse or people will be better or less informed as a result.

HEFFNER: Floyd, no one was suggesting limiting the discussion that way. We all …

ABRAMS: No, no, no … no, I really … I don’t mean around here. I really do mean, though, that a good deal of the discussion … I recently wrote an article trying to make this point … a great deal of the discussion of Citizens United hasn’t even mentioned the First Amendment.

NEUBORNE: Was that …

ABRAMS: When the President spoke about it … a former professor of Constitutional law spoke about it … he didn’t mention that it was rooted in the First Amendment. That when the Nation magazine seeks a constitutional amendment to reverse the opinion … they don’t say “Well, of course, this would be the first amendment in American history limiting what had been held to be First Amendment rights.”

HEFFNER: Well, maybe he … maybe he should have said that he didn’t’ think that the First Amendment was a suicide pact as …

ABRAMS: Well …

HEFFNER: … as has been said before and you and I here at this table … years ago … years and years ago … I remember when you … it was back in the …

ABRAMS: Please don’t look at prior transcripts (laugh)

NEUBORNE: Oh, my goodness …

HEFFNER: Nonesense …. you were saying … ah … asking the question … look who’s attacking the First Amendment now?

ABRAMS: Yeah.

HEFFNER: Your old friends.

ABRAMS: Yes.

HEFFNER: And you … here, here in the Yale Law Journal that you refer to … your piece there … you’re asking the same question. How do you account for …

ABRAMS: So, I am.

HEFFNER: … how do you really account for that?

ABRAMS: I really account for by asserting a general proposition that not many people really care about the First Amendment, when they don’t like the views being expressed or the people expressing them. That, that, that …

NEUBORNE: Yeah … I’m, I’m not … but I not sure …

ABRAMS: … but that’s a First Amendment … is, is, is something that is too often a convenience to justify one’s own political and social views rather than a limitation on the government becoming involved and limiting speech. And so, you know, I’m not surprised that when certain types of issues come up … I mean is it a coincidence that when cases arise about protests outside abortion clinics … the Conservative members of the Court, and I agree with them … dissent from opinions allowing significant limitations on picketing and speech outside abortion clinics.

Is it a surprise that when issue arise about sexual depictions of activities that the Liberal members of the Court find in the First Amendment ah, ah … protection that the Conservative members, in general, don’t tend to find.

I’m, I’m sorry about that, but I do think that too often people make First Amendment judgments based on their political and social views rather than … for better or worse … their views on what sort of First Amendment we ought to have.

NEUBORNE: Well, ahmm, I’ll take that as a mild criticism …

ABRAMS: I don’t mean it any other way …

HEFFNER: (Laugh)

ABRAMS: I really don’t …

NEUBORNE: I know, I know you don’t …

HEFFNER: He doesn’t mean it as a mild criticism. (Laugh)

ABRAMS: Of you … I mean it.

NEUBORNE: Ahem … the … but let, let me go right to where Floyd began and that’s that there’s a difference … there’s no difference between talking about American democracy and American society. The argument for doing some restrictions on speech in the context of an election to make sure that one side doesn’t blow out another side … to make sure that there is something fair.

Because when Floyd says it didn’t happen in this pass election … it didn’t happen wholesale, but it happened retail.

If you look at Congressional districts … isolated Congressional districts … 53 of them moved on the grounds that there was massive spending by one side more than the other.

Now, does that mean the entire election was invalid … no. But … 53 seats moved. Now would, would they have moved anyway? I don’t know. This was such an upsurge of anger with, with the existing government that who knows whether it changed.

But there was very significant spending disparities in 53 seats and 53 of those seats went. Now, it’s like the Yankees. If you can buy Cliff Lee for next year’s … ah, ah, ah, game … you’re going to do it and you know what … you’re going to have a better team and you may not win the World Series, but you got a better team. And that’s what we’re talking about … if you …

ABRAMS: And you want to change that …

HEFFNER: (Laughter)

NEUBORNE: (Laughter) If we should … if you can pour money into a campaign that way, you don’t always win, but you’re better off than if you don’t have the money.

And it seems to me that the whole purpose … and here, I think, there’s a real philosophical difference between Floyd’s approach and my approach. And they’re both legitimate.

But Floyd is what I would call a deregulation First Amendment person. He sees the First Amendment as, as something that says, “I take government out of the speech process, unless there’s some vastly important reason why it’s going to get in. So I take it out and I don’t care what kind of private stuff crawl in … but I get the government out”.

I have a slightly more romantic view. I view the First Amendment as an aspirational document. A document designed to try to achieve a, a … certainly a,a, a democracy in which people have roughly equal influence. Sure the rich are always going to have more. The question is how much more? And it seems to me that I would be willing to regulate to try to achieve that goal. Is it a risk? Of course, of course. Governments, governments when you give them that power have a tendency to abuse it. But it’s just as much of a risk not to do it. Because private entities when they crawl into the vacuum that gets created when you pull government out … they abuse things, too.

And so the question is which risk is worth taking? There’s no risk free answer here.

ABRAMS: Right.

NEUBORNE: Floyd is gambling that the corporations are not going to buy American democracy. I would gamble that government is not going to steal American democracy. Both are legitimate, but I’m right.

ABRAMS: And I would start with the First Amendment as written. I refuse to give you the romantic side of this. I take the First Amendment that says “Congress shall make no law … rather than a First Amendment which is a sort of …

NEUBORNE: Oh, but finish it … finish it. Finish it.

ABRAMS: Abridging the freedom of speech …

NEUBORNE: The … freedom … of … speech …

ABRAMS: … or of the press …

NEUBORNE: Doesn’t say, “the Congress shall make no law abridging speech …

ABRAMS: Yes, Justice Scalia … I understand that’s what you think.

HEFFNER: (Laughter)

NEUBORNE: No, I mean the words are there.

ABRAMS: The words are there. But the one thing (laugh) the First Amendment doesn’t sort of suggest is that we can have a sort of society in which… you know … why don’t we trust Congress. I mean they act in good faith generally. I mean they don’t act out of real self-interest. And that’s … we ought to work out what we think is the best pragmatic solution to a particular problem.

The problem is what should we do about our elections. I can’t think of an area in which I would trust the government less …

NEUBORNE: But how would …

ABRAMS: … than with respect to the election of the people who passed the laws.

NEUBORNE: But don’t you also say that you can’t think of an area where you would mistrust corporations more? They have so much at stake …

ABRAMS: No. I, I mistrust …

NEUBORNE: … in, in their relationship with the government.

ABRAMS: … I, I mistrust corporations more in putting out unsafe products, rather than, than spending their money in a wholly unpredictable way, about candidates … I mean we’ll, we’ll see how that part works out.

But, but it just seems to me and I agree with you … I think you state it very fairly our sort of starting points on this. All I would add to that starting point is, is that the lesson of history is that governments cannot be trusted to parcel out speech.

And one of the great contributions of our Bill of Rights and our First Amendment is establishing as a “norm” that the government may not do that. Now sometimes there are hard cases and sometimes as I was suggesting earlier … there are unpleasant cases in which we sort of hold our nose and said, “Okay we have to allow that speech even though, you know, if it does anything, it does some harm”. But taken as a whole I think, what we’ve opted for is a system of freedom and not of regulation. And there’s no area in which that’s truer than the First Amendment.

HEFFNER: … more romance …

NEUBORNE: The, the lessons of history are also that corporate power unchecked becomes a tremendous risk to any society. I mean … ahemm, all this talk about corporate spending starts in 1896 when Mark Hanna raises in those years $3.5 million dollars which is the equivalent of $3 billion dollars today and wins the election against William Jennings Bryan by an eyelash, by one percentage point.

And corporate money poured into that campaign. It was essential … and that’s what set Teddy Roosevelt off to say, that you should have corporate contributions. The difference between contributions and expenditures is a new idea.

For a whole century, we just assumed that corporations weren’t supposed to, you know, that, that we weren’t supposed to replicate in our democracy what Marx said was in our society … a split between labor and capital. Unions shouldn’t spend the money? Corporations shouldn’t spend the money.

Keep that kind of, of self-interested politics out of the, of the electorate. That’s all gone now. Now what we essentially have is two sides. We have labor …the unions, and we have corporations … the capital.

And they’re pouring money into the campaign … eventually capital wins, they have more money. And they’re gonna win because they’re going to able to completely outspend …

HEFFENR: And once again … not the government … but the studios …

ABRAMS: (Laugh)

HEFFENR: … tell me (laugh) that our time is up. But I’m really so glad you fellas came together here. Not just that you gave me more rest and relaxation that I usually enjoy, but that you’re so pointed in the arguments that you offer.

I hope we can all come back here and not all say “I told you so”. Floyd Abrams …

ABRAMS: Thank you.

HEFFNER: … Burt Neuborne …

NEUBORNE: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time here on the Open Mind. Meanwhile as another old friend used “Good night and good luck”.

And do visit our Open Mind website at thirteen.org/openmind.